The Clarence Thomas Scandal Is What's Wrong With Our Democracy

Supreme Court Justice Clarence Thomas had been problematic even before a new report that he and his wife, Ginni, accepted lavish and unreported vacations from a wealthy Republican donor, Harlan Crow.
Supreme Court Justice Clarence Thomas failed to disclose luxury vacations, superyacht trips and private jet travel he took from GOP megadonor Harlan Crow, according to ProPublica.
Supreme Court Justice Clarence Thomas failed to disclose luxury vacations, superyacht trips and private jet travel he took from GOP megadonor Harlan Crow, according to ProPublica.
Alex Wong via Getty Images

What are the ethical boundaries for people who have political power and influence?

I once invited a local lawmaker to lunch for an interview. Lunch would be on me. He wouldn’t allow it. “I wouldn’t even let you buy me a cup of coffee at Starbucks,” he told me.

At least that was a good thing, since I’m not exactly a fan of Starbucks.

But we did the interview, and we split the lunch tab.

I’m pretty sure he’d have turned down a chance to go island-hopping on some billionaire’s yacht.

Not Clarence Thomas.

Nearly every year for the past two decades, the Supreme Court justice enjoyed luxury vacations and free travel at the invitation of GOP megadonor and conservative billionaire Harlan Crow.

We’re only now learning about this because Thomas disclosed none of it. It took an investigation by ProPublica to bring the story to light, and we find ourselves in that familiar void between what’s not illegal and what’s unethical.

It shouldn’t be too hard to decipher. A 4-year-old child can make the distinction. “Run out and find me a 4-year-old child,” Groucho Marx once joked.

ProPublica spoke to several experts on disclosure laws and ethics.

Like most government officials, like most government employees, Supreme Court justices are required to report all gifts every year on a public filing. If they don’t reimburse the value of the gift, it has to be disclosed. The threshold requiring disclosure for Supreme Court justices is $415. The cost of renting a private jet for domestic travel is $70,000, according to ProPublica’s investigation.

Only once in 20 years — 1997 — has Thomas disclosed receiving a private jet trip on Crow’s Bombardier Global 5000.

Several experts on the issues of disclosure and ethics who spoke to ProPublica agreed: “Failure to report the gifts is a violation of the disclosure law.”

In a nutshell, Thomas was required to disclose gifts valued over $415, including travel. He has been getting private jet flights every year to the tune of $70,000 a pop, not to mention cruises and trips around the world. It’s millions of dollars in gifts, and he didn’t report a dime of it.

Federal rules on gifts and disclosure are stringent. Employees cannot accept any personal gift from a vendor or consultant that exceeds $20 without reporting it. They are warned regularly and typically required to take mandatory annual ethics training to remind them of this simple rule.

The same is true for many who work in the private sector. In some operations, employees must disclose the gifts they returned. Or it is mandatory to take an annual ethics compliance course complete with a test to prove your training in the company code of conduct. You would then sign off on that training with the understanding your employer would terminate you for any violations.

A federal employee once told me that if he took too many branded pens and Post-it notes from a vendor, that mere appearance of impropriety could cost him his job.

The reason for all this is obvious: Accepting any form of gift opens the door to a potential quid pro quo for the giver of such gifts.

A federal judge is under strict rules about accepting any gratuities. One federal judge told ProPublica that when making dinner reservations, she would never use her title as a judge to avoid even the appearance of impropriety.

“It was a question of not wanting to use the office for anything other than what it was intended,” she said.

The code of conduct for federal judges has never applied to the Supreme Court — only to federal judges below that level. According to Chief Justice John Roberts, members of the high court “consult” that code for guidance. The Supreme Court has been left almost entirely to police itself.

However, recently updated filing instructions for the judiciary now require Supreme Court justices to follow tougher financial disclosure requirements surrounding gifts.

Harlan Crow has been a major Republican donor for decades and has deep connections with conservative pro-business politics. He helped found the influential anti-tax group Club for Growth, which openly pushed to repeal the Affordable Care Act, which has gone before the Supreme Court more than once. Crow has donated to the Federalist Society, a group central in the Supreme Court’s shift to the right.

He was a backer of the Swift Boat Veterans for Truth, a group that successfully assailed John Kerry’s war record in the 2004 presidential campaign. In 2011, he donated half a million dollars to a Tea Party group founded by Ginni Thomas, which also paid her annual salary of $120,000.

He also heavily supports FreedomWorks, a group opposing President Joe Biden’s student loan relief plan. For over 25 years, he’s been on the board of the American Enterprise Institute, a staunchly conservative think tank. He also sits on the board of the Hoover Institution, another conservative think tank.

But the full scale of Crow’s patronage is unknown, given donations to groups that keep their donors secret. “I don’t disclose what I’m not required to disclose,” Crow once told The New York Times. And there is still much we don’t know about the relationship between Crow and Thomas, partly because so much of what Thomas knows remained secret for many years.

In a statement to ProPublica, Crow insisted there was never any form of influence peddling:

We have never asked about a pending or lower court case, and Justice Thomas has never discussed one, and we have never sought to influence Justice Thomas on any legal or political issue. More generally, I am unaware of any of our friends ever lobbying or seeking to influence Justice Thomas on any case, and I would never invite anyone who I believe had any intention of doing that. These are gatherings of friends.

Thomas claimed that he was not required to disclose the lavish trips via private plane rides from his billionaire friend.

“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said in a statement released by the court Friday. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.

“These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.”

I don’t care if they discussed cases or not. With the current “donation logic” in a political world with big corporations and the wealthy “donating” to conservative politicians to get what they want without discussing it, it simply doesn’t pass the sniff test.

It doesn’t matter that not a single mention of Harlan Crow or his business ever came up during those 20 years. Every case relating to business, be it Crow’s as a real estate magnate, or any issue of indirect consequence — water regulation, zoning, workers’ compensation — affects the bottom line of a billionaire. Isn’t it conceivable that Crow could benefit his bottom line with every drink and every meal he served the Thomases?

Just having a chat over dinner is bound to influence Thomas in some way or another. It’s like saying, “Yeah, I hang out with Dave, a card-carrying Communist, but we never discuss politics.” Just being around someone can influence your thinking. It’s the reason we have mandatory gift reporting.

How can Supreme Court justices have weaker ethics rules than the average government worker? How could an individual so learned in the law not understand the appearance of impropriety?

There is something wrong with the reality of being ruled by an unaccountable group of clerics with lifetime appointments who get to decide our laws.

It practically goes without saying that if one of the court’s three liberal justices had been doing what Thomas has been doing throughout their tenure, Republicans would be screaming bloody murder. If Sonya Sotomayor accepted even a single dinner from George Soros, the right-wing media would be apoplectic.

Would Democrats and liberals remain quiet if the tables were turned? I dunno, let’s ask Al Franken.

When this news broke, I imagined people throughout the Fox network shouting into telephones about crafting talking points to make it look as if Clarence Thomas did nothing wrong. You’d be left in a state of complete bewilderment about how they can be so brazen. (What, you mean again?)

This shouldn’t be a left or right issue, but simply an ethical one. As one ethics lawyer put it to ProPublica: “When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust.”

And that is the point. Legal experts can say what they will, but the way the public sees it, or should see it, is pretty simple: “Dat don’t look good.”

In a functioning democracy, Thomas would be impeached immediately. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress, and federal officials to disclose most gifts.

Don’t hold your breath on an impeachment. In Congress, the House launches an impeachment proceeding. The Senate handles the trial. You do know who controls the House, right? Good luck getting Marjorie Taylor Greene to give Kevin McCarthy permission to let anybody even mention it on the floor.

If Thomas were a Democrat, the GOP would be screaming for him to step down immediately, and he probably would. But because he’s a Republican, no one in the GOP will call for him to step down because everyone knows there’s no chance he ever will. Just ask George Santos.

But fear not, good citizen. Surely John Roberts will do something. He would never let anything tarnish the legitimacy of his court!

A fundamental problem with our democracy is that bribery is legal and baked into the system. A fundamental mistake has been to assume that a Supreme Court justice would be ethical beyond reproach because they get a job for life. But they are human beings with flaws and personal biases, just like anyone else. They should be subject to the same ethical standards, just like anyone else.

People of influence should avoid even the hint of impropriety in their dealings, especially those with the power to make and interpret laws. Isn’t this what the nation is dealing with now with Donald Trump? Have you ever seen the film “American Gangster”? Or “Serpico”? Those are based on true stories about corrupt cops who took drug money to look the other way. When they got caught, and they did, they went to jail.

Bad enough that Ginni Thomas has been deeply involved in conservative advocacy for many years, disturbingly so given who she’s married to. What Clarence Thomas has been doing for the past 20 years is even more brazen: a Supreme Court justice behaving as if he is above the law. And if it isn’t a question of law, how about a question of public trust?

The Supreme Court has maintained that they it does not have a code of conduct because it doesn’t need one. It’s clear now that the honorables have always needed one. One wonders, too, how many fellow justices looked the other way in the face of clear ethical violations.

I’m not even sure we need a rule to prohibit this sort of thing. Any citizen of even pedestrian knowledge can see this is entirely unacceptable. How can the high court have any credibility now? We can’t even call it a high court anymore, can we?

We want to believe that no one is above the law. Does that also hold for Supreme Court justices? What if it isn’t a law, but a question of ethics? Should we also live by a code that says an ethical violation should result in a punishment similar to illegal behavior?

The possibility always troubles us that public officials in service to the electorate and the nation might fall prey to temptation that can compromise their ethics. It’s one of many things that makes us suspicious about government, that makes us mistrust government. If that is an accurate reading of the electorate, then what do we say about people who violate those ethical standards. And what should we do about them?

The ProPublica investigation has given us yet another reason the Supreme Court enjoys little respect anymore and no longer deserves any. As if we needed another reminder that we are at the mercy of a tiny group of people.

In closing, I’ll just say this: I believe you, Anita.

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